NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-728
ADOPTION OF ERIK (and a companion case 1).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The mother appeals from the decrees of the Juvenile Court
finding her unfit to parent Erik and David, terminating her
parental rights, and declining to order posttermination and
postadoption visitation. We affirm. 2
Background. We recount the mostly undisputed facts,
reserving certain details for our discussion. The mother's
first adult involvement with the Department of Children and
Families (department) began in 2016 when she had her first child
1 Adoption of David. The children's names are pseudonyms.
2The father is identified as the legal father on Erik's birth certificate. The father is the putative father of David, but he is not identified on the birth certificate and had not established his paternity by the time of trial; he was also working diligently on completing his action plan tasks assigned by the department. As a result, trial proceeded as to the mother's parental rights only, and the father's trial was continued to a later date. at eighteen years old. 3 The mother's first child was removed
from the mother's care in 2017 due to the mother's mental health
challenges, unsanitary housing, and violent relationship with
that child's father. Also in 2017, the mother was
psychiatrically hospitalized at least three times and diagnosed
with schizophrenia. In 2018, the mother's parental rights as to
her first child were terminated.
From January 2019 until February 2020, the mother was
psychiatrically hospitalized again. Erik was born later in
2020. With the department's support, the mother began working
with a parent aide and engaging in therapy. In September 2020,
a report alleging a violent incident between the mother and the
father was filed with the department. That same month, the
department was granted temporary custody of Erik, who was an
infant at the time. The mother's engagement in services
subsequently decreased, and her mental health showed a general
decline.
In November 2021, the mother, having had little to no
prenatal care, gave birth to David at home while she waited for
emergency services to arrive. The next day, the department
filed a care and protection petition and was granted temporary
custody over him.
3 The department was involved with the mother's family when she was a child.
2 The mother continues to live with severe untreated mental
health issues. She denies her schizophrenia diagnosis and
maintains that a doctor gave her the diagnosis "so that she
could get [Supplemental Security Income]." She has experienced
auditory hallucinations, racing thoughts, and anxiety.
Throughout the department's involvement, the mother was
inconsistent with her engagement in services and frequently
showed hostility toward her children and department staff. The
mother would yell at the children. She refused to accept Erik's
autism diagnosis and called him "stupid." The mother refused to
take direction from staff 4 and, on one occasion, she ripped David
out of a staff member's hands. The mother also struggled to
maintain timeliness and consistency for her visits with the
children. 5 During visits, the mother was verbally aggressive
toward staff and had to be escorted out of the department's
office by police and security at least three or four times. 6 The
4 On several occasions, the mother insisted on feeding David with the formula she brought to visits, despite being informed that he was prescribed a special type of formula due to digestive issues. The mother also would feed her children food that was inappropriate for their ages.
5 Following David's removal, the judge ordered four visits per week, which took place at the mother's apartment until her behavior toward staff led to moving the visits to a common room in the building. Later, visits were reduced to weekly at the department's office.
6 Social workers met with the mother at least five times to address her behavior during visits but the mother would respond
3 judge found that the mother's mental health placed the children
at risk of abuse or neglect.
From June 2022 to May 2023, a social worker was able to
conduct only two home visits with the mother due to safety
concerns. 7 Similarly, the mother only attended one of four
foster care reviews, where the department discussed their
assessment of the children's needs, the mother's parenting
skills and abilities, and any gaps that needed to be addressed.
The department conducted several family assessments and made
several action plans designed to address the mother's
understanding of the children's needs, her mental health
challenges, and the domestic violence in her relationships. The
department was unable to confirm the mother's consistent
engagement in mental health treatment and, although she
completed a parenting class and a domestic violence awareness
class, her parenting skills and behavior did not improve.
At the time of trial in 2023, Erik was three years old and
David was twenty-one months old. The children were placed in
with defensiveness and hostility. The mother also was provided a parent aide to assist her in visits, support her interactions with the children, and improve her parenting skills. This service ended, however, after the mother made false allegations against the parent aide following a disagreement.
7 The department offered office visits in lieu of home visits, but the mother would not respond to e-mails attempting to schedule those visits.
4 separate foster homes with families who were committed to
adopting them. The mother was not present at the trial, and the
judge drew the negative inference that the mother was no longer
interested in parenting her children. After the trial, the
judge found that the mother was unfit and her unfitness was
likely to continue, and she terminated the mother's parental
rights as in the best interests of both children. The judge
declined to order any posttermination or postadoption visitation
because she found no evidence of a bond between the mother and
the children. The mother filed a timely notice of appeal.
Discussion. "To terminate parental rights to a child and
to dispense with parental consent to adoption, a judge must find
by clear and convincing evidence, based on subsidiary findings
proved by at least a fair preponderance of evidence, that the
parent is unfit to care for the child and that termination is in
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-728
ADOPTION OF ERIK (and a companion case 1).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The mother appeals from the decrees of the Juvenile Court
finding her unfit to parent Erik and David, terminating her
parental rights, and declining to order posttermination and
postadoption visitation. We affirm. 2
Background. We recount the mostly undisputed facts,
reserving certain details for our discussion. The mother's
first adult involvement with the Department of Children and
Families (department) began in 2016 when she had her first child
1 Adoption of David. The children's names are pseudonyms.
2The father is identified as the legal father on Erik's birth certificate. The father is the putative father of David, but he is not identified on the birth certificate and had not established his paternity by the time of trial; he was also working diligently on completing his action plan tasks assigned by the department. As a result, trial proceeded as to the mother's parental rights only, and the father's trial was continued to a later date. at eighteen years old. 3 The mother's first child was removed
from the mother's care in 2017 due to the mother's mental health
challenges, unsanitary housing, and violent relationship with
that child's father. Also in 2017, the mother was
psychiatrically hospitalized at least three times and diagnosed
with schizophrenia. In 2018, the mother's parental rights as to
her first child were terminated.
From January 2019 until February 2020, the mother was
psychiatrically hospitalized again. Erik was born later in
2020. With the department's support, the mother began working
with a parent aide and engaging in therapy. In September 2020,
a report alleging a violent incident between the mother and the
father was filed with the department. That same month, the
department was granted temporary custody of Erik, who was an
infant at the time. The mother's engagement in services
subsequently decreased, and her mental health showed a general
decline.
In November 2021, the mother, having had little to no
prenatal care, gave birth to David at home while she waited for
emergency services to arrive. The next day, the department
filed a care and protection petition and was granted temporary
custody over him.
3 The department was involved with the mother's family when she was a child.
2 The mother continues to live with severe untreated mental
health issues. She denies her schizophrenia diagnosis and
maintains that a doctor gave her the diagnosis "so that she
could get [Supplemental Security Income]." She has experienced
auditory hallucinations, racing thoughts, and anxiety.
Throughout the department's involvement, the mother was
inconsistent with her engagement in services and frequently
showed hostility toward her children and department staff. The
mother would yell at the children. She refused to accept Erik's
autism diagnosis and called him "stupid." The mother refused to
take direction from staff 4 and, on one occasion, she ripped David
out of a staff member's hands. The mother also struggled to
maintain timeliness and consistency for her visits with the
children. 5 During visits, the mother was verbally aggressive
toward staff and had to be escorted out of the department's
office by police and security at least three or four times. 6 The
4 On several occasions, the mother insisted on feeding David with the formula she brought to visits, despite being informed that he was prescribed a special type of formula due to digestive issues. The mother also would feed her children food that was inappropriate for their ages.
5 Following David's removal, the judge ordered four visits per week, which took place at the mother's apartment until her behavior toward staff led to moving the visits to a common room in the building. Later, visits were reduced to weekly at the department's office.
6 Social workers met with the mother at least five times to address her behavior during visits but the mother would respond
3 judge found that the mother's mental health placed the children
at risk of abuse or neglect.
From June 2022 to May 2023, a social worker was able to
conduct only two home visits with the mother due to safety
concerns. 7 Similarly, the mother only attended one of four
foster care reviews, where the department discussed their
assessment of the children's needs, the mother's parenting
skills and abilities, and any gaps that needed to be addressed.
The department conducted several family assessments and made
several action plans designed to address the mother's
understanding of the children's needs, her mental health
challenges, and the domestic violence in her relationships. The
department was unable to confirm the mother's consistent
engagement in mental health treatment and, although she
completed a parenting class and a domestic violence awareness
class, her parenting skills and behavior did not improve.
At the time of trial in 2023, Erik was three years old and
David was twenty-one months old. The children were placed in
with defensiveness and hostility. The mother also was provided a parent aide to assist her in visits, support her interactions with the children, and improve her parenting skills. This service ended, however, after the mother made false allegations against the parent aide following a disagreement.
7 The department offered office visits in lieu of home visits, but the mother would not respond to e-mails attempting to schedule those visits.
4 separate foster homes with families who were committed to
adopting them. The mother was not present at the trial, and the
judge drew the negative inference that the mother was no longer
interested in parenting her children. After the trial, the
judge found that the mother was unfit and her unfitness was
likely to continue, and she terminated the mother's parental
rights as in the best interests of both children. The judge
declined to order any posttermination or postadoption visitation
because she found no evidence of a bond between the mother and
the children. The mother filed a timely notice of appeal.
Discussion. "To terminate parental rights to a child and
to dispense with parental consent to adoption, a judge must find
by clear and convincing evidence, based on subsidiary findings
proved by at least a fair preponderance of evidence, that the
parent is unfit to care for the child and that termination is in
the child's best interests." Adoption of Jacques, 82 Mass. App.
Ct. 601, 606 (2012). "Unless shown to be clearly erroneous, we
do not disturb the judge's findings, which are entitled to
substantial deference." Id. at 606-607.
1. Unfitness. "Because termination of a parent's rights
is an 'extreme step,' . . . a judge must decide both whether the
parent is currently unfit and whether, 'on the basis of credible
evidence, there is a reasonable likelihood that the parent's
unfitness at the time of trial may be only temporary'"
5 (citations omitted). Adoption of Ilona, 459 Mass. 53, 59
(2011). "Parental unfitness must be determined by taking into
consideration a parent's character, temperament, conduct, and
capacity to provide for the child in the same context with the
child's particular needs, affections, and age." Adoption of
Mary, 414 Mass. 705, 711 (1993).
The mother concedes that she was unfit at the time of
trial. She argues that the department did not make reasonable
efforts to reunify her with her children and that she may raise
this issue for the first time on appeal.
Passing over whether the mother can raise the question of
reasonable efforts for the first time on appeal, we conclude the
judge did not err in finding that the department made reasonable
efforts to preserve the family. The mother does not accept her
diagnosis of schizophrenia, and her mental illness hinders her
ability to parent. The department provided her a parent aide
but the mother could not work with the aide. The department
provided other services to assist the mother in understanding
her children's needs and to address her mental health and
parenting challenges. The mother's engagement in these
services, however, was inconsistent and often hostile. The
mother refused to cooperate with the Department of Mental Health
and denied her schizophrenia diagnosis. Accordingly, we discern
6 no error. 8 See Adoption of Yalena, 100 Mass. App. Ct. 542, 554
(2021) ("The department's obligation to make reasonable efforts
to reunify the child with the mother is contingent upon her
obligation to substantially fulfill her parental
responsibilities [including seeking and using appropriate
services]").
2. Posttermination and postadoption visitation. The
mother argues that the judge erred and abused her discretion by
finding no bond between the mother and her children and
declining to order posttermination and postadoption visitation.
We disagree. During visits, the mother would yell at staff in
front of the children, place the children at risk of harm by
refusing to take direction from staff, yell at the children,
ignore Erik and call him "stupid," refuse to accept his autism
diagnosis, and on one occasion, ripped David out of the hands of
staff. There was no evidence that the children "[sought]
comfort from [the] [m]other" or "engag[ed] with her in playful,
8 Similarly, because of the mother's inability to understand and address her parental shortcomings, we disagree with the mother's passing claim that there was insufficient evidence to support the judge's determination that her unfitness was not temporary. See Adoption of Inez, 428 Mass. 717, 723 (1999) (judge may not base future fitness on "faint hope" that parent may later become fit); Adoption of Carlos, 413 Mass. 339, 350 (1992) (in determining future fitness, "[a] judge may properly be guided by evidence demonstrating reason to believe that a parent will correct a condition or weakness that currently disables the parent from serving his or her child's best interests")
7 nurturing ways." The children have lived most of their lives
with their preadoptive families, with whom they have bonded.
See Adoption of Ilona, 459 Mass. at 63-64. In these
circumstances the judge did not abuse her discretion in
declining to order visitation. 9
Decrees affirmed.
By the Court (Henry, Shin & Brennan, JJ. 10),
Clerk
Entered: July 2, 2025.
9 The mother argues that the judge's prior ratification of the department's reduction of visits from 208 per year to twelve and subsequent cessation of visits was an abuse of discretion. Because she did not raise this issue below, it is waived. See Adoption of Norbert, 83 Mass. App. Ct. 542, 545 (2013). In any event, we discern no error given the mother's inability to work with staff or prioritize the needs of the children.
10 The panelists are listed in order of seniority.